Page:Federal Reporter, 1st Series, Volume 3.djvu/654

 TOLLIAMS V. eTEAM-TÛQ WM. COÏ, 647 �serîously contradicted, that uponhis testimony, uncorroborated, I should hesitate to and any material fact which is disputed. But on this point, that from the time the tow got into the bay, ■where she was subjected to the full force of the wind and sea, tho water broke over her more or less, his testimony is sup- ported by that of several other witnesses, and the fact is so probable in itself that it needs little evidence to establish it, other than the state of wind and weather, which is fully proved. �After coming ont of the kills the tow had the wind on the port quarter, and the proof is that the waves came up under the stem and port side of the barge, and the water ran along her deck and was thrown over her combings. It is argued on the part of the tug that this theory is refuted by the evi- dence that the barge was not observed to bave settled in the water at ail till she got up to, or nearly up to, Governor's island, and that libellant's pump sucked, whenever he tried it, up to about the time of reaching that place. I think the nature of the cargo, pea coal, containing a good deal of dust, was such that it would hold a large quantity of water, which would not run through to the pumps ; and if the flooring of the boat was quite tight, as is testified to by the libellant and not contra- dicted, a very large part of the water shipped would not reach the pumps. The amount of water required to overload the boat would not exceed 20 tons. ' It might be considerably less. And I think, upon the testimony, there is no improba- bility in her having shipped enough water through her open deck to overload her ; and there is no sufficient proof of any other cause of her sinking. The captain of the tug first discovered , that she was sinking. They were then about up with Governor's island. He thinks she had settled in the water then only about three inches. But on such a point the judgment is very uncer- tain, especially as the boat was not still, and was in very rough water. The failure to observe that she had been gradually settling from the effect of the water shipped is not, I think, a circumstance of controlling weight. After she was ob- served to be sinking she went down rapidly, as was to be expected, since she was still on very rough water, and the ����